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Revo v Western Provincial Government Executive [2017] SBHC 57; HCSI-CC 312 of 2014 (22 March 2017)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: YALU REVO - 1^st Claimant
(Representing himself and the Revo clan
of the Kalevangunu tribe)

OLIVER BIKOMORO JINO - 2^nd Claimant

(Representing himself and Luisa Viqe Clan

of the Kalevangunu Tribe)

BROWN LAMO - 3^rd Claimant

(Representing himself, Viulu Clan and
the Kalevangunu Tribe)

AND: WESTERN PROVINCIAL - 1^st Defendant

GOVERNMENT EXECUTIVE

OMEX HOLDING LTD - 2^nd Defendant

Date of Hearing: 7 March 2017
Date of Judgment: 22 March 2017

Mr. A. Kesaka for claimant and 2^nd defendant
Mr. G. Suri for claimant and respondents to application
Mr. D. Damilea for Western Provincial Government Executive

Application to strike out proceedings of judicial review of a Customary Land Court determination

Brown J:

Ex Tempore
I gave short ex tempore oral reasons on the 7 March when I struck out these claims for judicial review. I now give my written reasons.

The 2^nd defendant, Omex Holdings Ltd has standing to seek to have these proceedings struck out since the company was the applicant for a timber rights hearing dealt with by the Western Provincial Government Executive at Seghe Court House on the 9 February 2012. By decision on the 17 March 2014 at Gizo, the Provincial Executive made a determination favourable to this applicant, the 2^nd defendant or logging company. If the claim for judicial review were to succeed, the 2^nd defendant company would be at risk of losing an anticipated benefit from those named by the Provincial Executive as trustees for the landowners able to deal with timber rights, for the presumption which I accept, is that the company would log by agreement with the trustees so found.

These proceedings after quite some time came to court for a conference envisaged by R15.3.16 – 15.3.12 of the Civil Rules of Court to consider whether grounds sufficient for judicially reviewing the findings of the Customary Land Appeal Court by declaratory relief under the provisions of the Constitution and Forestry Act , exist.

Mr. Kesaka counsel for the 2^nd defendant, has filed an application to strike out the proceedings, an application which I will subsume in the hearing of the matters going to my discretion under R.15.3 when deciding whether judicial review lies.

The arguable case pleaded by the claimants challenges the validity of a Form II issued on the 20 March 2014, for by S. 9 [2] of the Forestry Act^[1] the appropriate Government, on making its determination under S. 8 [3] of the Act, shall issue such certificate “as soon as practicable” after the public hearing. In fact the Form II certificate issued some years after the timber rights hearing. By S. 8 [3] the Government shall seek to determine, with the customary landowners, those matters set out in that section of the Act and that determination shall become the basis of the document, Form II.

As well, by paragraph A(i) of the Claim, the Provincial Executive is said to have breached S. 10(9) of the Constitution by failing to pronounce its determination in public, a claim which rather misunderstands the nature of the Executive’s obligation, to discuss and determine; the obligation is in relation to notice of the Form II for it is that document which by S. 8 [2] of the Act, need be published. On the evidence, I am satisfied that document was published after the extraordinary meeting in 1014.

The undisputed facts are that the Executive, comprised of other members than those members who conducted the hearing in 2012, by extraordinary meeting made its determination in 2014 without reconvening any hearing.
A finding of the Government by its Provincial Executive, with authority to determine trustees representative of those with rights to timber on customary land, Mr. Kesaka says, [while not determinative of ownership of land to be affected], gives rise to a right in those aggrieved to appeal the decision of the Executive in accordance with the provisions of the Forestry Act. I accept that proposition.

I am not satisfied on the ratio decidendi in Gandly Simbe’s case that the Provincial Executive can affect a person’s constitutive rights of land ownership, as Mr. Suri argues, rights which have been affected by the Executives determination and adversely dealt with by the Executive contrary to S.10(8) of the Constitution. For the Executive has no function as “a court or other adjudicating authority” in terms of the phrase used in S. 10[8] but rather exercises the function given it by statute by naming, as it were, those found by agreement at the meeting to represent the various tribes or groups claiming to own the land the subject of the application to log. The Government by its Executive, cannot by constitutive legal act, determine the tribes or groups ownership of the land notwithstanding the use of the form name, “Certificate of Customary Ownership” Form II^[2] .

The determination after two years, by an Executive of differently composed members in 2014, after an election cannot be presumed to be a determination of the Government imbued with the obligation incumbent at the hearing conducted in 2012. The phrase, “appropriate Government” used in S. 8 [3] refers both to the locus of the land within the “appropriate Government” boundaries and to the actual “Government” which conducts the hearing of the logging application. For the Government subsequently elected is not that Government which carried out the hearing.

For while Mr. Kesaka says the members of the Executive usually go back to their office and write up the determination at Provincial Headquarters, such delay in publishing the determination is administrative and not to be allowed by reference to the determination by a newly elected Executive for the warrant, if it could be so described, of the former Executive expired at the time of the fresh election. An act of the newly elected Executive is consequently an act without basis for it relates to no hearing as prescribed by the Forestry Act.

The claimants rely on the authority of Simbe’s case for that no determination was made at the Timber Rights Hearing. Mr. Kesaka points to a practice where the Executive writes up the determination later, but that practice cannot be equated with the obligation incumbent on the earlier Executive to “discuss and determine with the customary landowners and the applicant, matters etc” required under S. 8 [3] of the Act. For by A [iii] of the amended Claim, in the light of the Minutes of the Executive listing the landowner objectors to the logging, the claimants say rejection of the logging application should have been recommended to the Commissioner of Forests, not the later recommendation to accept the application by the differently constituted Executive two years later. In Yalu Revo’s statement of the 22 September 2014, at Annex “4” the objectors are listed – including Oliver Jino. The 2^nd claimant, Oliver Jino’s recorded response went to the fact that landowners were not well represented. He pointed out there are 3 tribal groups opposed to logging in the area. Others spoke in opposition.

On the face of the record of the minutes of the hearing for timber rights, there is clearly opposition. No evidence of agreement pursuant to S.9 (1) of the Act appears on the Record, nor is there other material leading to the Executive’s “determination” in 2014 which shows agreement.

By terms of the Act the failure to evidence agreement envisaged by S.8 (3) (a) and S.9 (1) require the Executives recommendation to reject the application. This ground is made out.

The 4^th and 5^th grounds of Claim relate to the composition of the Executive at those different times coupled with the delay in making such determination in 2014, two years after the hearing. I have canvassed those issues.

I now come to the 2^nd question posed by R. 15.3.18 (b); are the claimants directly affected by the subject matter of the claim? Do they have standing to pursue this claim for judicial review?

The claimants claim to be owners and were named objectors at the timber rights hearing.

Mr. Kesaka is very much against the claimants argument they are landowners or represent landowners. He points to material in support. Abraham Kuniki’s statement [by its exhibit AK 1], of the 25 September 2015 contains a decision of the Chiefs Court, given on the 18 May 2005 at Tige United Church Hall and that by AK 2, an affidavit of acceptance by these claimants given before the Marovo Council of Chiefs headed In THE MATTER of the customary ownership and boundaries of six tribal land at Vangunu from Chochole river to across Gevala river mouth and follow the coast to Choxhole river mouth, these claimants acknowledged membership of the Veala tribe of Vangunu and requested the Local Court Clerk to record the Marovo Council Chiefs determination in accordance with Section 4 [1],[2],[3] and [4] as plaintiffs with others in the Chiefs hearing, and affirmed acceptance of the hearing.

The land subject to timber rights is Kalevangunu customary land. Mr. Kesaka argues these claimants are not affected for a member of the Veala tribe cannot claim land of another tribe. The land is different land altogether.

Mr. Suri for the claimant’s relies on the 1^st and 2^nd sworn statements of Yalu Revo where it can be seen by that statement of 22 September 2014 and annexed documents the steps taken leading to the issue of a certificate of customary ownership or Form II dated 20 March following the extraordinary meeting of the Executive to consider the application by Omex Holding Ltd to log Kalevangunu and Vakambo customary land. For these claimants all claim as tribal members of the Kalevangunu Tribe. Some 8 persons were named as lawfully able and entitled to grant timber rights in an area bounded red on an attached map. No map was with the annexure but the Executive resolved to approve the application by Omex over the two customary land areas including Kalevangunu, and curiously recommended that the Commissioner of Forests approve the application for timber rights by Omex over these lands. The timber rights remain with the trustees on the landowners behalf and by Form 4 agreement the trustees may contract with the company and grant a right to fell, harvest and extract timber but it is not for the Commissioner of Forests to grant timber rights.

A perusal of the Minutes of the 12^th Executive meeting, 2013/2014 dealing with the timber rights application touches on the reasons for the delayed consideration and the objection in relation to Kalevangunu land. I need not detail those matters. In the annexed material is a letter by the Deputy General Manager, Steven Veno by Omex Holding Ltd dated 4 March 2014, expressly asking for publication of the relevant notices at the appropriate venues for a reconvening of a timber rights hearing in relation to the companies logging application. It would seem the Executive took action by convening an extraordinary meeting following which the Form II issued without considering the need to reconvene the public hearing.

This court considers the Form II is misnamed, “certificate of customary ownership” since the Court of Appeal has expressly denied any right in the Executive to so determine. This Form II addressed the matters set out in the section 8 [3] of the Act. Notwithstanding the Form II there has been no Form 3 Certificate or Form 4 Agreement shown in the material filed although Steven Veno at para. 21 of his statement, says the Commissioner of Forests had not issued Form 4 up to the date of this claim. That, of course is within the Commissioners powers dependent upon the recommendation of the Executive by Certificate under S. 12 of the Act. The exercise or absence of exercise of that power may be open to judicial review.

These claimants appear to have adopted or asserted different tribal membership to that averred in their affidavit earlier referred to. Consequently on the evidence, Mr. Kisaka’s client has undermined these claimants standing to seek redress. For they claim it would seem reliant on tribal membership and assertions of ownership to land unsupported by authority although Mr. Suri says a referral to the House of Chiefs by these claimants is yet to be decided. The plausibility of the claimants’ ownership has been severely tested in these circumstances.^[3] There clearly is no evidence on their part disavowing their earlier affidavit apart from the assertions in their claim.. I prefer to accept the argument of the 3^rd defendant that these persons are party to those earlier proceedings before the House of Chiefs. Their rights if any are accordingly rights in personam against those trustees found able to deal with the timber rights of all landowners of the subject land, were the Executive to authorize the Commissioner of Forests to issue a logging licence.

By sworn statement of Steven Veno filed 14 November 2014, he recounts that copies of the Executive determination in Omex favour were placed at all appropriate locations. At annexure SV 10 to that statement, The Resident Magistrate Western confirmed by letter dated 24 April 2014 to the Commissioner of Forests that no appeal had been lodged in relation to the Executives determination.

The claimants certainly were amongst objectors to the grant of timber rights. Even where they may be found to have no direct ownership in particular parcels of land to be logged, there is in the community an indirect interests to see to the betterment of the community and ever logging in circumstances, acceptable to the community, may go towards that betterment. Their standing by the fact of their appearance as objectors presumes ownership of land to be affected by logging and they accordingly may pursue their rights at law if their ownership of land were to be affected by acts adverse to the land.

Mr. Kesaka’s client has, on the evidence, undermined the assertions by these claimants to standing, reliant on landownership about the concession. Mr. Suri’s clients’ claims would appear yet to be established by way of their current approach to the House of Chiefs, an approach in the face of the evidence on the material already filed. Future decision of the Chiefs cannot have any bearing on this Claim at this time. For in the exercise of my discretion, I must only consider the facts as they stand and should not presume to entertain possibilities about the House of Chiefs decision. It would seem the paramount business of the Chiefs is the reconciliation of these peoples differences in so far as their inter-tribal relations are concerned and indirectly their respective share of any benefits from logging. On balance, I am satisfied the claimants have not made out an arguable case.

In terms of Rule 15.3.18 [c]& [d], [no undue delay in making the claim coupled with no other remedy that resolves the matter fully and directly] Mr. Suri concedes avenues for appeal have closed but argues judicial review may be availed of in those circumstances. The essential question answered by the Court of Appeal, more recently in the appeal of Bavare^[4] is whether those appellants had another remedy available to them. In this case the remedy lay by way of appeal from the later decision of the Provincial Executive pursuant to S. 10 of the Forest Resources and Timber Utilisation Act to the appropriate Customary Land Appeal Court. As has been evidenced no appeal had been made. Clearly on the arguments advanced here, these claimants may be seen as “aggrieved persons” able to appeal.

In accordance with the reasons of the Appeal Court^[5] the hierarchy of rights in accordance with the statutory provisions has given these claimants opportunity as aggrieved persons to appeal to the Customary Land Appeal Court but may not later claim a right of judicial review. For the determination of the Provincial Executive is neither final or binding but in the absence of appeal by these claimants they are out of time to utilize the avenues provided by statute.

By seeking the courts assistance by way of judicial review, the claimants seek to avoid the effect of the CLAC determination which relies on the substantive law of the Forestry Act. Rules of Court are but rules of procedure and by R. 15.3.18 [d] direct the court to consider the substance of the law under which the determination by the Executive has been made. That substantive law may not, on the principles set out in O’Reilly v Mackman^[6] be avoided by seeking judicial review as an alternative to the remedy provided for in the legislation. The substance of the law is that the appeal process need be followed.

The Court of Appeal by dicta said:-
“A foreign logging company like the respondent Eagon Resources would have no such right to be party to such proceedings. [matters going to ownership of customary land] But its claim to enter upon and to fell or remove timber from customary land is necessarily dependent on the right if any, derived by it from the customary landowners with whom it claims to have made a timber rights agreement. The status of its right to enter and log cannot in law transcend the title of those from whom it claims by agreement to have acquired that right with whatever weakness it involves. As has been remarked elsewhere, a timber licence, and in turn a timber rights agreement, rely for their efficacy on the title of the customary landowners entitled to the timber on that land."^[7]
While the 2^nd defendant may be a local company, it is not seeking to be heard on a land claim, rather it seeks to show sufficient interest to be heard on the judicial review question. I have accepted the company has that interest. The persons determined to be able to grant timber rights as named by the Executive in the determination may well face continuing disputation over these logging operations but “any dispute between those persons and members of their tribe in relation to the logging operations is an internal matter to be settled between the members in the proper forum”^[8]. Of course the Commissioner of Forests with the history of these disputations has responsibilities when considering whether or not to issue a logging licence and cannot be trammeled by this court order. For the process leading to the Government determination may be seen as flawed.

For all these reasons in my discretion in terms of Rules 15.3 the court is not satisfied of the claimant case for judicial review and the claims are struck out pursuant to R 15.3.2.
The defendants shall have their costs of these proceedings on the 3^rd schedule basis.

__________________
BROWN J

^[1] Forest Resource and Timber Utilisation Act, Cap 40
^[2] Simbe v East Choiseul Area Council [1999] SBCA 9; CA-CAC 8 of 1997 at para. 8 of the judgment.
^[3] Gandly Simbe at 25
^[4] CAC no 21 of 2011 dated 25 November 2011
^[5] Supra, at para. 14
^[6] [1983] 2 AC at 254
^[7] Supra, Gandly Simbe’s case at para. 23
^[8] Tovua anors v Meki anors [1988/89] SILR 74